International Law and Practice: Private International Law

Author(s): Harold Burman

Source: Best of ABA Sections: General Practice, Solo & Small Firm Section, Vol. 2, No. 1
(SPRING 1998), pp. 42-43
Published by: American Bar Association
Stable URL: https://www.jstor.org/stable/23781836
Accessed: 27-08-2019 21:22 UTC

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42 Best of ABA Sections

International Law and Practice

Private International Law a convention for general commer
cial and inventory financing, based
on accounts receivable. While some
By Harold Burman
progress was made, the meetings
highlighted the lack of consensus
Three Completed Efforts to Unify al articles on sector-specific con on what purpose private law harmo
Private Law. The unification of pri cerns, which has two articles on nization should serve. The U.S.
vate law at the international level
electronic bills of lading. Focused view is that it should consciously
moved ahead on several fronts, primarily on maritime and admi facilitate economic development
including completion of three ralty usages, the articles seek to and create new pools of commercial
international legal works—the validate electronic documents by credit for underserved markets, and
United Nations model national resolving some uncertainties that not merely harmonize legal stan
laws on electronic commerce, the arise from presentment of nonpa dards between already established
Hague Conference's Convention per instruments. markets.
on the protection of minors, and The UNCITRAL "Notes on In order to achieve the U.S.
the UNCITRAL notes on organizOrganizing Arbitral Proceedings" goal, UN standards need to sup
ing international commercial (Notes) were completed and port credit on a more modern par
arbitration. released in the fall of 1996. The adigm than the traditional three
In June 1996, the Organization Notes, and their checklist of matters party arrangement. The United
of American States (OAS) General to be considered, draw attention to a States has also urged that interests
Assembly approved a resolution innumber of matters such as arbitra perfected under the convention
principle convoking the Sixth tion rules, language of the proceed must prevail over those perfected
CIDIP. The Section has provided ings, procedures and evidence, and under national laws of ratifying
input on which of eight topics defining points at issue. Regionally, states in order to attract foreign
should be supported. As an indiciathe Inter-American Commercial credit for new markets, which is a
of change in 1996, the new OAS Arbitration Commission (IACAC), large leap for many countries.
Secretary General circulated a a quasi-official body established The second closely related
document calling for, inter alia, pursuant to OAS resolution that can project is the UNIDROIT effort to
more emphasis on development ofadminister arbitrations under the draft rules for mobile equipment,
the private law infrastructure as a 1975 Panama Convention, modified including aircraft, vessels, contain
means to promote economic inte its Rules, which are based on the ers, agricultural and construction
gration in the Americas. UNCITRAL Arbitration Rules of equipment, and large trucks.
UNCITRAL completed its 1976. The Rules are effective in all
Consensus has not yet been
ground-breaking basic rules on fourteen states party to the Convenreached on whether the Conven
electronic commerce at its 1996 tion except the United States. Based tion would cover equipment that in
Plenary session. The rules cover in part on recommendations of the the normal course of business
functional equivalents of "signa Section, the Senate, in granting moves across borders, or apply
ture," "original," "writing," etc., advice and consent to U.S. ratifica when only such equipment actual
and provide default rules on who tion, entered several reservations, ly so moves.
is bound, where and when mes including a requirement that no 1995 UN Convention on
sages are deemed to have been change to the Rules could be effec Independent Guarantees and Standby
made or received allocations of Letters of Credit. The Convention
tive as to the United States until the
risk, and other matters. The rules Secretary of State accepted the bridged a number of differences
favor validation of commitments changes, following a rule-making between American-based letter of
made by computer messaging, but process under Title 5, U.S.C. credit law and European-based law
do not go as far as the proposed Promoting International Secured on independent bank guarantees. It
new U.C.C. Article 2B, which Interests Law. Concurrent efforts was endorsed for signature at the
incorporates the concept of an progressed in two international bod 1996 annual meeting of the
"electronic agent." ies, UNIDROIT and UNCITRAL, Secretary of State's Advisory
The model national law has a to draft conventions on secured Committee on Private
interests. UNCITRAL seeks to draft
second part, reserved for addition International Law. It was agreed

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 For General Practice, Solo & Small Firm Lawyers 43

For More Information

however, that the Advisory five participating countries. The
Committee would again review the Convention addressed questions of
About the Section of
Convention before it took a posi jurisdiction, applicable law, and International Law & Practice
tion on U.S. ratification. Some recognition and cooperation with
issues remain as to the effect of -This article is an abridged and edited version of one that originally
regard to measures for the protec
appeared on page 685 in The International Lawyer, Summer 1997
the Convention vis-a-vis applica tion (custody) of children.
issue (31:2).
ble domestic law. International Child Support
-For more information or to obtain a copy of the periodical in
Developing Country Project Enforcement. Recently enacted fed
which the full article appears, please call the ABA Service Center at
Financing. Focused on the rapidly eral welfare reform legislation
1-800-285-2221.
growing market for "Build, Operate authorizes the government to enter
-Web site at http://www.abanet.org/intlaw/.
and Transfer" (BOT) contract meth into arrangements with other
-Periodicals: The International Lawyer, quarterly law journal;
ods of combining private and pub countries for the reciprocal
International Law News, published quarterly; committee newsletters.
lic financing of infrastructure pro enforcement of support obligations -Books and Other Recent Publications: International Practitioners
jects, proposed projects at (42 U.S.C. §§ 659a and 654(32)).
Workshop Series; The World Trade Organization: Multilateral Trade
UNCITRAL and elsewhere In the absence of such authority in
Framework lor the 21st Century and U.S. Implementing Legislation; The
gained momentum in 1996. The the past, many U.S. states, with International Lawyer's Deskbook; Counseling Emerging Companies in
International Law Institute in State Department support, have Going Global; Negotiating and Structuring International Commercial
Washington, D.C., the World Bank,made arrangements directly with Transactions: Legal Analysis with Sample Agreements; Enforcing Foreign
and others, prepared a UN survey twenty countries and have been Judgments in the United Slates and United States Judgments Abroad;
of legal issues involved in this negotiating with another eighteen The ABA Guide to Foreign Law Firms; Careers in International Law; ABA
innovative practice. This will lead for the reciprocal enforcement of Guide to International Business Negotiations.
to preparation of legislative guide support obligations through paral
lines, model contract provisions, orlel policy declarations. The new
other legal tests as well. legislation authorizes the Secretary
Cross-Border Insolvency. 1996 saw of State to declare that certain of the Convention throughout the
the advancement of a draft UN countries are reciprocating nations United States.

model national law on procedural if they are able to meet specified Future Draft Convention on

aspects of cross-border insolvency. requirements, with the effect that Jurisdiction and Enforcement of Foreign
With the support of NGOs such as support obligations originating in Judgments. The Hague Conference
INSOL and the International Bar such countries would be enforced agreed to prepare a convention on
Association, as well as conferences throughout the United States. A jurisdiction and the recognition and
of bankruptcy judges cohosted by corresponding declaration by the enforcement of judgments in civil
INSOL and UNCITRAL, draft pro other country would provide for and commercial matters during
visions have been prepared on (1) the enforcement in that country of 1996-2000. The convention may
recognition of a foreign main pro support obligations originating in provide different rules for enforce
ceeding and its relation to local pro the United States. ment depending on the bases of
ceedings, (2) access and rights to Intercountry Adoption Convention. jurisdiction and other considera
participate for foreign administra The State Department is working tions. The Conference also decided
tors and creditors, (3) a mandatory with the Department of Health and to seek to prepare by 1999 a con
(though not automatic) temporary Human Services and the Immigra vention that would address ques
stay to prevent dissipation, and (4) tion and Naturalization Service to tions of jurisdiction, applicable law,
authority for judicial cooperation prepare federal implementing legis recognition and enforcement, and
across borders, a provision equaliz lation for the 1993 Hague Conven international cooperation with
ing payout between certain classes tion on intercountry adoption. The regard to the protection of incapaci
of creditors, and other matters. Convention establishes internation tated adults.
Convention on the Protection of ally agreed norms and procedures to
Children. At the eighteenth Session safeguard children moving in adop Harold Burman is in the Office of
of the Hague Conference on tion from one party country to the Legal Advisor, U.S. Depart
Private International Law in another and to protect the interests ment of State in Washington, D.C.
October 1996, the final text of a of their birth and adoptive parents. He is vice-chair of the Private
convention on the protection of The legislation is required to ensure International Law Coordinating
children was adopted by the thirty the full and uniform implementation Committee.

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